On Medical Negligence

Liability for Medical Malpractice is a special type of tort liability. The seventh chapter of Tort Law of the People’s Republic of China made special provisions about Liability for Medical Malpractice. The identification of medical fault is the most important and kernel basis in Liability for Medical Malpractice. In my view, Liability for Medical Malpractice does not solve the intentionally damage problem in medical activities from the angle of system. Otherwise, it will violate the connotation of medical activities and the requirements of medical ethics. Therefore, the "fault" in article54of Tort Law shall be restrictively interpreted which means that "fault" in Liability for Medical Malpractice shall be negligence only.This paper studies medical negligence by comparatively analyzes the fundamental problems with regard to negligence and medical negligence at home and aboard, and especially discusses the standards and basis of identifying medical negligence, namely "medical standard" and "medical duty of care". In addition, this paper tries to perfect the medical standard theory combining the reality in China, In general, it intends to expound the relevant issues on medical negligence from three parts:The first part mainly discusses the concept, types and legal sense of medical negligence. Besides, this part states the key role medical negligence plays in Liability for Medical Malpractice which lays a foundation for discussing relevant problems.The second part expounds the basis for identifying medical negligence that is medical duty of care. In addition, it focuses on the legal source and types of medical duty of care which provides standards in identifying medical negligence. Furthermore, the relationship between "medical duty of care" and "medical standard" will be analyzed which introduces the discussion in the third part.The third part analyzes the standards of medical negligence identification. It puts emphasis on the abstract standard—"medical standard" and comes up with recommendations from different aspects to perfect medical standard theory combing the actual situation in China. At the same time, this part also makes brief analysis on the supplementary rules of identifying medical negligence. Finally, the influence of patients’ commitments on identification of medical negligence will be discussed.